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2026 Supreme(Online)(Ker) 34615
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Sathish Ninan, P. Krishna Kumar, JJ
Manimandiram E. Pathros Vaidyar – Appellant
Versus
Mattapallil Cherian – Respondent
FAO NO. 49 OF 2023
For the Appellants/Petitioners: N.D.Arun Das, M.C.Chithrakala, N.C.Joseph
For the Respondents: R.Surendran
Under Article 123 of the Limitation Act, if substituted service is used, the limitation period starts from the date of knowledge; however, if the applicant's own testimony confirms long-standing awareness of the suit and execution proceedings, the plea of unawareness lacks bona fides and will be rejected.
Headnote:The present case involves the interpretation of Article 123 of the Limitation Act, 1963, concerning the period of limitation for filing an application to set aside an ex-parte decree when summons is served by substituted service. The appellant sought to set aside an ex-parte decree passed in 2009 by filing applications in 2018, contending that he was unaware of the suit and that the delay was minimal. The trial court dismissed these applications, citing a lack of bona fides in the explanation for the delay. The core issue is whether the appellant's claim of lack of knowledge regarding the suit and decree is credible, particularly when evidence indicates his awareness of execution proceedings spanning nearly a decade. The ratio decidendi holds that where a party's own admission in testimony reveals persistent awareness of suit-related proceedings—including delivery of property, police complaints regarding trespass, and construction activity by an auction purchaser—the explanation for delay is rendered devoid of bona fides and cannot be accepted, regardless of the mode of summons service. The final outcome is that the appeal is dismissed for lack of merit, and the trial court's order is confirmed.
| Table of Content |
|---|
| 1. overview of the petition to set aside an ex-parte decree. (Para 1 , 2 , 3) |
| 2. application of article 123 of the limitation act regarding substituted service. (Para 4 , 5) |
| 3. evaluation of evidence and bona fides in the context of delay. (Para 6 , 7 , 8) |
SATHISH NINAN & P. KRISHNA KUMAR, JJ.
Dated this the 16th day of June, 2026
JUDGMENT
Sathish Ninan, J.
The applications, seeking to set aside an ex parte decree on condoning delay, were dismissed by the trial court. The defendant-petitioner is in appeal.
2. The suit is one for recovery of money. The suit was decreed ex parte on 21.01.2009. The application to set aside the ex parte decree was filed in the year 2018. The petitioner claimed that the delay was only of 94 days since he was not served with summons in the suit and he had knowledge of the decree only 3 months back.
3. The trial court found that the explanation offered for the delay and in seeking to set aside the ex parte decree lacks bonafides. Accordingly, the applications were dismissed.
4. We have heard the learned counsel on either side.
5. The summons in the suit was served on the defendant by substituted service. The Explanation to Article 123 of the Limitation Act provides that, when summons is served by substituted service, the period of limitation to file an application to set aside an ex parte decree commences from the date on which the defendant gets knowledge of the decree. According to the appellant- petitioner-defendant, he was unaware of the suit and decree, and as soon as he came to know about the same, the applications were filed. The delay is only of 94 days, it is claimed.
6. The decree was put in execution, the property sold, and was delivered over. The applications have been filed nine years after the ex parte decree. The petitioner- defendant was examined as PW1. We find that his evidence in cross-examination itself is sufficient enough to find that the explanation offered by him lacks bonafides. According to him, he had started an Ayurveda hospital at Kushal Nagar and hence, he was not residing at his permanent residence. This is to suggest that he was unaware of the suit and the proceedings. As PW1, he admitted that it takes only 1 to 1½ hrs from his house to reach that place. He deposed that, during holidays and when he is on leave, he reaches his permanent address. He admitted that he has relatives there. He further admitted that, whenever he goes to his hospital/clinic at Kushal Nagar, his wife would be there at his permanent address. He also admitted that, till her death in 2010, they were on good terms. He further admitted that, after his remarriage in the year 2013, they had resided together at their permanent address. He further deposed that the communications received in the permanent address were received by his wife, who used to hand over the same to him.
7. PW1 admitted that in February, 2007, he came to know about the demolition of his house. He admitted that, since 2014, the house and the property were not in his possession and that he came to know about the delivery in the year 2014. The suggestion made to him that, after delivery in execution, he had filed a complaint to the Police in the year 2014 alleging trespass, was not denied. He also admitted that he had filed a complaint to the Police alleging that the articles in his house, were taken by the plaintiff. He also admitted that the house was under lock and key after the delivery in the year 2014 and he has not entered the house thereafter. He also admitted that, in 2015, the house was demolished. He further admitted that, in the year 2017, a new house was constructed by the auction purchaser. He also deposed that he got the information with regard to the details of the case from his neighbours.
8. All the above amply establish that the petitioner- defendant was very much aware of the case, the decree, and also the execution proceedings. The contention of the appellant-petitioner-defendant that he was unaware
